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Need for a Family Department

Unique Nature of Family Disputes

The unique nature of family law cases is often claimed but seldom explained.
The National Council of Juvenile and Family Court Judges highlighted one
distinguishing feature: "Family court cases involve legal issues with emotional
and social dimensions."(1)

The societal impact of the decisions of all courts is common. The emotional
-- sometimes violently emotional -- dimension of family law cases is unique.
The power of the emotional trauma of domestic litigation too often leads
to violent consequences in the courtroom.(2)

Another factor distinguishing family law cases from other litigation
is the continuing relationship of the family members. In civil litigation,
parties may leave court and never again cross paths. In family law cases,
the parties and the children of parties will continue to interact for many
years. One of the dualistic goals in family law cases is to encourage cooperation
between former spouses and healthy bonds between parent and child, while
at the same time separating spouse from spouse and parent from child.

A third distinguishing feature is the mission of the family court to
reach beyond the case before the court in an attempt to fashion a remedy
to govern future conduct of the parties.(3)

Usually in civil and criminal litigation, the court adjudicates only
the immediate controversy between the parties. The court is available to
the parties for writs and other procedures for the enforcement of court
orders, but, absent a request by a party, the court is disinterested in
the future interaction of the parties. The authority of the family court
to adjudicate the rights and responsibilities of persons who are not formal
parties and to enter orders governing future daily conduct is one of the
family court's most powerful features.

The task of the family court -- to adjudicate
the rights and responsibilities of the parties, to regulate the continuing
relationship among family members, and to do so within an emotional cauldron
-- is a delicate and complicated task. Families in court are often there
under compulsion or as a last resort. They may have expectations for success
greater than can be achieved by the court.

Ultimately, the members of the family must assume responsibility for
the resolution of their own problems. With experience and expertise and
the coordination of public and private resources, the family court judge
may be able to establish an environment in which the family can resolve
its disputes. But the court can achieve this goal only in collaboration
with others. "Answers to the complex problems of failing families and dangerous
youth can be achieved only by the determined commitment of government,
community and courts working in partnership to develop and rigorously apply
public and private resources to this struggle."(4)

A. Lack of Delay in Utah Trial Courts

Although reports of other states often cite the delay of domestic cases
as one reason for creating a family court, and although one study shows
significant improvement in the timeliness of dispositions in a family court,
delay is not a problem in the Utah trial courts.(5)

A task force member stated during debate that the current process of
litigation is very efficient, but that there is a lot of debris as a result
of the litigation process. The high incidence of delinquent behavior among
the children of divorced parents, the high rate of delinquent recidivism,
and the high rates of domestic violence and of noncompliance with orders
of support and visitation support this observation. Some of this debris
may be avoidable through the merger of domestic and juvenile jurisdiction
in a family department of the district court.

B. Fragmented Jurisdiction

Virtually every report from the several states that have created committees
to study domestic and family law cite the fragmented jurisdiction of the
current court system and the resulting confusion and frustration by the
parties as a major reason for recommending an integrated family court with
more comprehensive jurisdiction.(6)

The structure of jurisdiction in Utah makes it easy for a family to
find itself before two and sometimes three courts for the resolution of
different family law cases.(7)

Moving all of the jurisdiction related to family law into one department
provides an improved opportunity to coordinate the litigation and services
involving a family, but the reorganization does not, of its own force,
provide that coordination. Human intervention, on the part of judges and
staff, is critical.

Reorganization
of the courts alone is not sufficient. The family department must reorient
itself to:

foster nonadversarial procedures for the dissolution of marriage and the enforcement of orders;

"protect children and families when private and other public institutions are unable to or fail to meet their obligations;"(8)

enforce the constitutional and statutory rights of the parties and the rules of evidence and procedure;

coordinate multiple litigation facing a single family; and

serve as the center for coordinating the provision of services to families before the court.

A. Multiplicity of Cases Affecting a Family

In 1991, the District and Juvenile Courts of Salt Lake County served
as one of three sites for a study by the National Center for State Courts
and the National Center for Juvenile Justice to assess the need for the
coordination of family law cases. The correlation among family law cases
in Salt Lake County was significantly higher than in the other two test
sites: Hudson County, New Jersey and Fairfax County, Virginia.

In Salt Lake County 53% of all family law
disputes involved a family with at least one prior or concurrent family
law dispute in the courts.(9)

The highest correlation was with cases of juvenile delinquency in which
71% of the cases involved a family with at least one prior or concurrent
family law dispute.(10)

The highest frequency of related cases often occurred across the current
jurisdictional boundaries.

The multiplicity of cases extends across generational boundaries as
well. In comments supporting the need for the child mentor program he is
inaugurating, Judge Andrew Valdez of the Third District Juvenile Court
stated that he is seeing in court the children of people he defended as
a lawyer with the Legal Defenders Association of Salt Lake County. "I can
go through three generations in one week in my court, and that's more often
than not."(12)

Whether by being a victim or simply a witness, children are learning
the violence and dysfunction of their parents.

Data and experience coincide to show that Utah families have frequent
recourse to the courts for a variety of family law cases. The advantage,
to parties and to the courts, of resolving those disputes in one forum
is obvious. The simplest function required of the family, attending court,
is made simpler by providing a single court at which to resolve all of
the cases. The court will be able to coordinate the scheduling of cases
to avoid duplicative hearings and the duplicative presentation of evidence.

B. Specialization

The results of a survey of lawyers in four states with a family court
show that those lawyers "resoundingly agreed that consolidation of all
family matters into one court saved time and money."(13)

"Procedures are more uniform because there is only one forum. The court
is more efficient and cases move along faster."(14)

In the survey, lawyers reported what they believed to be a higher quality
of justice due to the specialization of family court judges and staff.
The factors that contribute to judicial quality were reported as increased
training in family law issues and the selection of more interested, better
qualified judges.(15)

The specialization called for in a family court is the ability to merge
legal principles with corrective counseling, therapy, and other treatment
programs. "The family court judge must know what the court may do and how
it may be accomplished within the limits of the law....But the judge must
be advised of what is best suited in the individual case to rehabilitate
the actual or redirect the potential delinquent. They will work together
best in a unified system rather than in separate and very likely mutually
jealous and potentially hostile organizations"(16)

The judicial skills necessary to blend law
and treatment are different from the expertise a judge develops in the
litigation of other criminal and civil cases, but not less attainable for
that difference. "A judicial system which is responsible to determine difficult
issues of medical malpractice, product liability, anti-trust or psychiatric
defenses to criminal charges can be reasonably expected to develop and
apply the expertise of its judges and staff necessary to comprehensively
resolve family law matters."(17)

The family department judge should, among other things, be able to:

recognize routine cases and avoid intervention;

work with a delinquent youth for so long as there is hope that the youth will mature into a productive citizen;

recognize the need to protect society from victimization by violent and repeat offenders;

protect child and adult victims of domestic violence;

ensure the due process protections afforded the accused both in delinquency and adult civil proceedings; and

develop a treatment plan designed to meet the particular needs of the parties before the court.

A. Improve the Delivery of Justice to Families

Much of the need for a family department
lies in the potential of the department: the potential to accomplish in
a unified court what separate trial courts have not been able to accomplish.
The goals of the family department are achievable within the existing structure
of separate trial courts, but the integration of separate jurisdictions
establishes a stronger environment in which to achieve these goals.

1. Improved Case Management

Improved case management can make better use of judicial time, improve
the ability of families to negotiate the legal system, and improve the
ability to connect families with needed services. These goals can be accomplished
by providing more and better information, coordinating the management of
cases and services, and enhancing nonadversarial methods for the disposition
of cases.

Family department staff can screen and evaluate cases by gathering data
to build a case profile. The profile can then be used to direct the case
to the appropriate programs or through the appropriate procedures for disposition.

2. Improved Information

Reliable information is critical to sound decision making. This is true
of decisions made by parties, by judges, and by court staff. The family
department can improve the quality and the availability of information
to judges and court staff, to service providers and agency personnel, to
parties and counsel, and to the public.

Although each of the three courts responsible for the different components
of family law has a strong automated information system, each system is
independent of the others with limited or no ability to share information
across jurisdictional or geographic boundaries.

Integrating the jurisdictional components in a family department will
provide also an integrated information system. The information system should
give quick access to the status, orders, hearings, and reports in the instant
case and related cases. With the appropriate amendment of the laws regarding
the confidentiality of family law proceedings, this information can be
made available to courts of other districts, executive branch agencies,
service providers, and others with the need for access.

Family department staff should be given the information, training, and
authority to assist parties with the answers to procedural questions. Court
staff should maintain current information on the availability of programs
in the community or region and make the information available. Simple information
such as the name, address, and phone numbers of contact persons within
the executive branch agencies of county and state governments should not
be overlooked.

The family department can better advocate the development of innovative
sources of information such as the Utah Quick Court(18)
and uniform forms for simple procedures.

3. Improved Coordination of Cases and Services

"Multiplication of tribunals is characteristic of the beginnings of
judicial organization. When some new type of controversy or some new kind
of situation arises and presses for treatment, a new tribunal is set up
to deal with it."(19)

A simple review of the State of Utah telephone directory shows the degree
of fragmentation of services encountered daily by many people with family
law disputes. The Division of Family Health Services is within the Department
of Health while the Division of Mental Health is within the Department
of Human Services. The Department of Human Services also contains, each
in a separate division or office: Aging and Adult Services; Family Support;
Family Services; Recovery Services; Substance Abuse; and Youth Corrections.
The office of Crime Victim Reparations is separate from all other departments,
as is the Commission on Criminal and Juvenile Justice. Probation supervision
of juvenile offenders not committed to the Division of Youth Corrections
is the responsibility of the juvenile court.

This brief review of programs within state government does not include
the array of agencies, offices, departments, and divisions of the federal
government and of the several counties. Knowledgeable professionals need
the skills of Theseus to navigate such a labyrinth of agencies. It should
not surprise that families in crisis or stress, often dysfunctional to
begin with, become lost.

The court must share with the executive branch any indictment based
upon poor coordination. Although there is no statistical evidence, anecdotal
evidence shows the too frequent existence of conflicting orders between
courts and conflicts between the court and various agencies.

Organizations are structured in compartments. Budgets, buildings, personnel
supervision, and other features of bureaucracy enforce that structure.
But families do not encounter crises in such a compartmental fashion. The
family must solve the whole problem, which may or may not consist of separable
segments.

The family department can provide parties with better information for
using various agencies. It can coordinate interdepartmental teams in the
development of treatment plans and the delivery of services.

4. Nonadversarial Procedures

A family department will serve as a strong medium for the development
of nonadversarial procedures, such as mediation, for the resolution of
family law disputes. Although marriage is sometimes likened to a contract,
it is substantially different from a business contract. The procedures
adequate for the enforcement of a business contract or for the recovery
of damages for the breach of that contract do not serve the needs of parties
seeking to dissolve a marriage. The adversarial process may be the preferred
method of resolving disputed issues of fact, but it is an impediment to
future cooperation of the parties.

3. "The goal of a court dealing with family
disputes should be more than simply resolving the particular issues before
them. Rather, such resolution should leave the family with the skills and
access to support services necessary to enable them to resolve subsequent
disputes constructively with a minimum need for legal intervention. Governor's
Task Force on Family Law, (Maryland) (October 1992) Chapter 3, Section
4, at 2.

"Too often courthouse resolutions resolve only the legal conflicts,
leaving unaddressed the underlying personal, relationship, and psychological
disputes." Report of the Judicial Council of Virginia on the Family
Court Pilot Project, Page 25, (1993).

4. Children and Families First: A Mandate for
America's Courts, National Council of Family and Juvenile Court Judges
at 7 (1993).

5. The Pace of Litigation in Utah's State District
Courts, Utah Judicial Council (April 1991) shows that domestic cases,
like all civil and criminal cases in Utah's district courts are among the
most efficiently managed in the country. Periodic reports of the juvenile
court show that case disposition standards -- 100 days for the average
disposition time and no more than .5% of petitions over 18 months -- are
consistently met.

6. See, e.g., Arthur, Lindsay G.,
A Family court--Why not?, 51 Minn. L. Rev. 223 (1966); Bohlman, Bruce E.,
A Family Court for North Dakota, 67 North Dakota Law Review 353 (1991); Hurst, Hunter and Kuhn, Jeffrey A.,
A Family Department for the District Courts of Kansas, The Corporation for Change (May 1993);
Final Report of the Governor's Task Force on Family Law, Maryland, (October 1992);
Final Report of the Senate Task Force on Family Relation Court, Senate Task Force on Family Relations Court, California (November 1990);
Report of the Commission on Family Courts, Florida (March 1, 1991);
Report of the Judicial Council of Virginia on the Family Court Pilot Project, (1993);
Report to the 112th Legislature of Maine from the Commission to Study Family Matters in Court, (March 1986).

America's Children at Risk: A National Agenda for Legal Action, American
Bar Association Working Group on the Unmet Legal Needs of Children and
their Families at 53-54 (July 1993).

7. In judicial districts 5 through 8 there are two
courts, the district and juvenile courts, responsible for all family law
disputes. In judicial districts 1 through 4 the circuit court is responsible
for crimes of domestic violence charged as misdemeanors. Upon the completion
of court consolidation, the circuit court jurisdiction will be merged into
the district court in all judicial districts.

8. Children and Families First: A Mandate
for America's Courts, National Council of Family and Juvenile Court
Judges at 7 (1993).

9. Rubin, H. Ted and Flango, Victor Eugene, Court
Coordination of Family Cases, National Center for State Courts, 30
(1992).